[DOCID: f:hr177.110]
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110th Congress Report
HOUSE OF REPRESENTATIVES
1st Session 110-177
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DISMISSING THE ELECTION CONTEST RELATING TO THE OFFICE OF
REPRESENTATIVE FROM THE FOURTH CONGRESSIONAL DISTRICT OF LOUISIANA
_______
June 6, 2007.--Referred to the House Calendar and ordered to be printed
_______
Mr. Brady of Pennsylvania, from the Committee on House Administration,
submitted the following
R E P O R T
[To accompany H. Res. 462]
The Committee on House Administration, having had under
consideration an original resolution dismissing the election
contest relating to the office of Representative from the
Fourth Congressional District of Louisiana, report the same to
the House with the recommendation that the resolution be agreed
to.
DISMISSING THE ELECTION CONTEST IN THE FOURTH CONGRESSIONAL DISTRICT OF
LOUISIANA
The Committee on House Administration, having had under
consideration an original resolution dismissing the election
contest against James Otis (``Jim'') McCrery, reports the same
to the House with recommendation that the resolution be agreed
to.
COMMITTEE ACTION
On May 8, 2007, by voice vote, a quorum being present, the
Committee agreed to a motion to report the resolution favorably
to the House.
COMMITTEE OVERSIGHT FINDINGS
In compliance with clause 3(c)(1) rule XIII of the Rules of
the House of Representatives, the Committee states that the
findings and recommendations of the Committee, based on
oversight activities under clause 2(b)(1) of rule X of the
Rules of the House of Representatives, are incorporated in the
descriptive portions of this report.
STATEMENT ON BUDGET AUTHORITY AND RELATED ITEMS
The resolution does not provide new budget authority, new
spending authority, new credit authority or an increase or
decrease in revenues or tax expenditures. Thus, clause 3(c)(2)
of rule XIII of the Rules of the House of Representatives and
the provisions of section 308(a)(1) of the Congressional Budget
Act of 1974 are not applicable.
STATEMENT OF FACTS
On December 20, 2006, Patti M. Cox (``Contestant'') filed
with the Clerk of the House of the House of Representatives a
Notice of Contest captioned ``Patti M. Cox, Contestant, v.
James Otis (``Jim'') McCrery, Contestee.'' The document,
prepared by Contestant, was filed pursuant to the Federal
Contested Elections Act (``FCEA'').\1\
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\1\ 2 U.S.C. Sec. Sec. 381-96.
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Contestant ran as one of two Democratic candidates for the
United States House of Representatives from the Fourth
Congressional District of Louisiana in the general election
held on November 7, 2006 against incumbent Republican James O.
McCrery (``Contestee''). The other participants in the
Congressional race were Artis R. Cash, Sr. and Chester T.
Kelley. The returns as certified by the Secretary of State of
Louisiana were:
Jim McCrery 77,078 57%
Artis R. Cash, Sr. 22,757 17%
Patti Cox 17,788 13%
Chester T. Kelley 16,649 12%
Contestee, based on the certified returns, was declared the
winner of the Fourth Congressional District seat on November
20, 2006.
BASIS OF CONTEST
In the Notice of Contest, Contestant alleges that Contestee
was not, when elected on November 7, 2006, an inhabitant of the
state of Louisiana within the meaning of the Qualification
clause, Article 1 2, cl. 2, of the United States
Constitution.\2\ Therefore Contestant claims that Contestee is
not qualified to serve as a Representative to the Congress from
the state of Louisiana. Contestant does not challenge the
accuracy of the returns or allege any irregularity in the
election.
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\2\ No person shall be a Representative who shall not have attained
to the Age of twenty-five Years, and been seven Years a Citizen of the
United States, and who shall not, when elected, be an inhabitant of the
State in which he shall be chosen.
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The essence of Contestant's claim is that Contestee did not
maintain a sufficient physical presence in Louisiana to qualify
him as an inhabitant of the state for the purposes of the
Qualifications clause. Contestant alleges that Contestee had no
home apartment, habitation or other place of abode in the state
on Election Day. According to Contestant, Contestee sold his
home in Louisiana in July 2004 and subsequent to that date did
not have a Louisiana residence. On his statement of candidacy
filed with the Louisiana Secretary of State, Contestee listed
his domicile as 10855 Longfellow Trace, Shreveport, Louisiana.
Based on a phone call that a Dr. Kirkikis purportedly had with
one of the owners of that property, Contestant claims that
Contestee did not ``live'' at that address. Contestant further
claims without any documentary support that the apartment that
Contestee now leases in Louisiana was only leased after the
date of the election. These allegations, if proven to be true,
Contestant claims, would be sufficient to demonstrate that
Contestee is not qualified to hold the office of Representative
to the Congress from the state of Louisiana.
RESPONSE BY CONTESTEE
Contestee filed a formal answer and motion to dismiss in
response to the Notice of Contest with the Clerk of the House
of Representatives on January 18, 2007. Contestee answers that
he fully satisfied the inhabitancy requirement of the
Qualification Clause. He provided an affidavit from the owner
of the property attesting to the fact that he maintained a
residence at 10855 Longfellow Trace, Shreveport, Louisiana
continually from September 2004 until November 2006. He further
provided a lease for an apartment that he currently maintains
with a term that began on November 4, 2006 and runs through May
31, 2007.
NATURE OF PROCEEDING
The Committee finds that this contest should not have been
brought before the House under the FCEA and should be
dismissed.
Under the precedents of the House, a challenge to the
qualifications of a Member is not treated as an election
contest. The question before the House under the Qualification
clause is not whether the Member was duly elected but whether
the Member notwithstanding election is constitutionally
qualified to hold the office. Deschler's Precedents of the U.S.
House of Representatives: (Deschler's) expressly references the
distinction:
A challenge to seating a Member-elect may also be
based on his failure to meet the constitutional
requirements as to citizenship, residence, or age for
the office, and in that context is treated as a matter
of ``exclusion'' and not as an election contest.\3\
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\3\ Deschler's Precedents, supra at Chapter 9, Sec. 9, p. 362.
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Deschler's set forth the procedures under which a challenge
to the qualifications of a Member-elect is typically brought:
Alleged failure to meet qualifications is raised,
usually by another Member-elect, before the House rises
en masse to take the oath of office. [footnote omitted]
If a challenge is made, the Speaker requests the
challenged Member-elect to stand aside. The Member
elect whose qualifications are in doubt may then be
authorized to take the oath of office pursuant to a
resolution so providing, which resolution may either
declare him entitled to the seat, or refer the question
of his final right to committee. [footnote omitted] The
House may also refuse to permit him to take the oath,
and may refer the question of his qualifications and
his right to take the oath to committee. [footnote
omitted] If the House finds that a Member-elect has not
met the qualifications for membership, or has failed to
remove disqualifications, a new election must be held.
An opposing candidate with the next highest number of
votes cannot claim the right to the seat.
It is important to note that a successful challenge to the
qualifications of a Member elect does not result in the seating
of the opposing candidate with the highest number of voters.
This is a critical fact in evaluating claims under the FCEA. An
essential element of an election contest under the FCEA is that
the contestant claims a right to the office. An individual who
cannot claim a right to the office does not have standing to
bring an action under the FCEA. In such circumstances a contest
is properly dismissed.
The Committee finds that, as a general matter, challenges
to the qualifications of a member-elect to serve in the
Congress are not a proper subject for a contest brought under
FCEA. Nothing in Contestant's Notice of Contest persuades the
Committee to re-consider its understanding of the FCEA.
Consequently, the Committee concludes that Contestant's
arguments regarding Contestee's qualifications to serve in
Congress do not constitute grounds sufficient to change the
result of the election and, therefore, recommends that this
election contest be dismissed.
The Committee also notes that there is no reason to
believe, based on evidence that was presented in this contest,
that Contestee was not an inhabitant of the state of Louisiana
when he was elected. Indeed, the evidence submitted by the
contestee suggests that he was in fact an inhabitant, but
because that question is not properly before the Committee, the
Committee makes no formal finding in that regard.
CONCLUSION
For the reasons discussed above, the Committee therefore
concludes that this contest should be dismissed.
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